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COA uses opinion to clarify sentence claims

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The Indiana Court of Appeals used a defendant's appeal today to clarify that inappropriate sentence claims and abuse of discretion claims are to be analyzed separately.

David King's appeal of his sentence following a guilty plea to dealing cocaine as a Class B felony in David King v. State of Indiana, No. 49A02-0802-CR-162, prompted authoring Judge Nancy Vaidik to explain inappropriate sentence and abuse of discretion claims are to be analyzed separately. King's inappropriate sentence argument also had references to the abuse of discretion standard.

Because not-for-publication opinions are showing other attorneys are making this mistake, the appellate court wanted to use this opinion to clarify that an inappropriate sentence analysis doesn't involve an argument that the trial court abused its discretion in sentencing the defendant, Judge Vaidik wrote.

Appellate courts may revise a sentence if it is found to be inappropriate in light of the nature of the offense and character of the offender. The location of where a sentence is to be served is reviewable by the appellate court, but isn't subject to a review for abuse of discretion, she continued.

In the instant case, King, who was ordered to serve six years at the Department of Correction, alleges he should have been allowed to serve his time in community corrections or "at least be given the benefit of the mental health evaluation and treatment he clearly needs," but he doesn't detail the treatment. At his sentencing hearing, the trial court noted King claimed to have multiple personality disorder, a diagnosis he made himself.

His counsel failed to present evidence of what type of treatment King allegedly needs and was confused about King's diagnosis. The attorney requested placement with a mental health component, but didn't specify that component, wrote Judge Vaidik. And, King received his medication while in jail awaiting sentencing. Because of this evidence, King failed to persuade the appellate court his placement with the DOC was inappropriate.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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